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Prisoner Education Guide

Prison Legal News: April, 1996

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Volume 7, Number 4

In this issue:

  1. Microsoft Out-Cells Competition (p 1)
  2. The Keepers and the Caged: Heroes and Necromancers in the Prison System Today (Book Review) (p 4)
  3. Racist Guards at Florida Prison (p 4)
  4. From the Editor (p 5)
  5. Prison Population Statistics Available (p 5)
  6. Not All Prisoner Lawsuits Are Frivolous (p 6)
  7. Iowa Supreme Court: Hearing Required Before Prisoner Funds Seized (p 7)
  8. $55,540 in Attorney Fees for RFRA Suit (p 7)
  9. Parole Change Violates Ex Post Facto Clause (p 7)
  10. Washington DOC Enjoined from Taking Blood (p 8)
  11. Grievance Discipline Struck Down (p 8)
  12. Disciplinary Findings Must State Evidence Relied On (p 9)
  13. Oklahoma Pre-Parole Status Creates Liberty Interest (p 9)
  14. Exploitation of Ohio Prison Labor (p 10)
  15. Grievance Retaliation Unlawful (p 10)
  16. Jury Not Waived in "Doubtful Situation" (p 11)
  17. Peruvian POWs Rescued (p 11)
  18. Genital Groping States Claim (p 12)
  19. Michigan ACLU Protests Religious Prison College (p 12)
  20. Seventh Circuit Decides "Mail Box" Rule (p 12)
  21. Damn Lies and Statistics (p 13)
  22. Georgia Prisons Enter Dark Ages (p 13)
  23. Michigan Consent Decree Not Changed (p 14)
  24. Arizona's New Tin Horn Dictator (p 14)
  25. RFRA Applies to Retaliation Claims (p 15)
  26. Pelican Bay Psychiatrists Resign in Protest (p 15)
  27. Jailhouse Lawyers Retain Right to Assist Prisoners (p 16)
  28. Texas Guard Killed by Riot Shield (p 16)
  29. No Jurisdiction for Some Qualified Immunity Appeals (p 17)
  30. Permanent Injunction Issued in Madrid (p 17)
  31. $460,800 Verdict in Ohio Beating Affirmed (p 18)
  32. Discrimination Dismissal Reversed (p 18)
  33. Administrative Reversal of Disciplinary Sanction Doesn't Bar Suit (p 19)
  34. Fourth Circuit Rules on IFP Statute, Again (p 19)
  35. Sandin Inapplicable to Detainee Disciplinary Claims (p 20)
  36. $150,000 Jury Award in Beating Case Affirmed (p 21)
  37. News in Brief (p 22)
  38. Tuberculosis TRO Issued (p 23)

Microsoft Out-Cells Competition

In the Seattle area, home to software giant Microsoft, it's not uncommon to hear the phrase "Microsoft Millionaire." There exists a large number of ex-Microsoft employees who made their millions, quit the company, and are now free to enjoy other pursuits. Many of them are quite young, in their thirties or forties.

Not everybody who toils for Microsoft, however, can hope to become a millionaire as a result. Many of Microsoft's products are packaged and shrink-wrapped by prisoners at Washington's Twin Rivers Corrections Center (TRCC).

According to one prisoner who works for Exmark, a company specializing in product packaging, approximately 90 prisoners at TRCC packaged 50,000 units of Windows 95 demo disks and direct-mail promotional packets.

"Those were good times for us, he recalls fondly. "Everybody had plenty of work then." That same worker says he was laid off after the Microsoft contract, and he hasn't worked since. Each day, he says, he checks the bulletin board: Exmark posts a "call-out" list with the names of those workers fortunate enough to have a job the following day. He explains that those prisoners with the least seniority or who have fallen into disfavor - for anything from ...

The Keepers and the Caged: Heroes and Necromancers in the Prison System Today (Book Review)

by Jean Marie Christenson; Kendall/Hunt Publishing 241 pages. $14.95

The Keepers and the Caged is a compilation of 21 personal interviews conducted by the author with Washington State prisoners, prison administrators, and guards. Without "politically correct" editing, each person interviewed tells their truth about life behind the walls. Invaluable insights, observations, and truth emerge as it becomes intensely clear to the reader the courage it took for those interviewed to speak. Must reading for anyone looking for factual and honest material about life behind bars.

Available for $14.95, shipping incl., from:

Kendall Hunt Publishing
P.O. Box 1840
Dubuque, IA 52004-1840
tel: 1-800-228-0810

Racist Guards at Florida Prison

Rarely do you find reports of racist actions of prison guards in the mainstream press. Most editors wouldn't consider it news for white prison guards to display racial hatred towards their black captives. Ho-hum. But the Palm Beach Post featured several lengthy articles in December about the racist actions of guards at Florida's Martin Correctional Institution (MCI). The headline? "Racial Tension Growing at MCI: A Probe Details Racist Mail and Slurs Directed at Black Officers."

Oh, so that's it! Guards acting like racists towards other guards. Well, now, that's not nice.

The series of Palm Beach Post articles detail a long-standing tradition of black guards at MCI being harassed, threatened, humiliated and intimidated by their white co-workers.

Seven MCI guards filed discrimination complaints with the Equal Opportunities Commission, which conducted an investigation and released a 200-page report. The report details incidents such as: racist mail placed in black guards' employee mailboxes; a black doll hanging from a noose in the prison's control booth; dead animals placed in the parked vehicles of black guards; retaliation against guards who report incidents of racism.

Wayne Bythwood, a black guard who has worked as a recreation supervisor since the ...

From the Editor

We want to thank the Southern Poverty Law Center for awarding a $5,000 grant to PLN. We still need $30,000 over the next two years to fund what amounts to a full-time staff position. The $5,000 grant from SPLC will give us breathing room and allow us to develop additional fundraising strategies. If all goes as planned, we will return to financial self-sufficiency within two years. You can help us to increase circulation by passing out samples of PLN. Send a self-addressed return mailing label and ten stamps to cover postage, and we'll mail you a bundle of PLN's to distribute to potential subscribers.

One of the things that will help our long-term growth is to increase the mass media's awareness of PLN. I am asking you, our readers, to help our efforts to increase media interest in PLN. I ask that you "sponsor" a PLN subscription for a member of your local media (TV, radio or newspaper reporters). Please send us the name and address of the media contact you wish to sponsor, along with $6 (or one book of stamps) for a 6-month subscription, or $12 (or two books of stamps) for ...

Prison Population Statistics Available

The annual BJS report on prison populations was released on Dec. 3, 1995. The number of state and federal prisoners grew by 89,707 during the 12 months ending June 30, 1995. It was the largest one-year population increase ever recorded in the U.S.

The state prison population grew by 9.1 percent and the federal prison population grew by 6.1 percent, which is the equivalent of 1,725 new prisoners per week. The combined state and federal prison populations grew by 8.8 percent, slightly higher than the annual growth (7.9 percent) recorded since 1990.

Texas reported the largest prison population growth (nearly 27 percent), followed by West Virginia (26 percent) and North Carolina (18 percent). There were declines in the District of Columbia (5 percent), Alaska (3.1 percent), Arkansas (1 percent) and of less than one percent in Maine and South Carolina.

Once again the population growth for females was higher, 11.4 percent compared to an 8.7 percent increase for male prisoners. Racial disparities continue to be significant. The proportion of Black females in the U.S. who were imprisoned was seven times higher than for white females. Similarly the proportion of ...

Not All Prisoner Lawsuits Are Frivolous

by Chief Judge Jon O. Newman, Second Circuit Court of Appeals

[Editor's Note: The following article is reprinted from the January, 1996, issue of The Corrections Professional. Judge Newman is the chief judge of the U.S. Second Circuit Court of Appeals. The article is based on his commencement speech to the graduating class of the Brooklyn Law School. The letter to the New York Times which Judge Newman refers to was sent by the Attorney Generals of four states: Washington, New York, Indiana and Nevada. Needless to say, the NYT printed the letter without checking the underlying facts behind it, as Judge Newman did. But the facts are immaterial. The concerted effort by the National Association of Attorney Generals to push legislation eliminating prisoners' ability to access the courts relies on lies, half-truths and misrepresentations. They are silent about the many cases where their prison official clients are found guilty of violating prisoner rights. After all, if responsibility were a concern of theirs then losing defendants would pay damage awards and their defense fees from their own pockets. Instead taxpayers get stuck with the tab for damage awards and defense fees; and the defendants keep their jobs to ...

Iowa Supreme Court: Hearing Required Before Prisoner Funds Seized

The Iowa state supreme court has held that prisoners must be afforded a hearing before prison officials seize funds sent to the prisoner from outside sources in order to pay court ordered restitution. In 1982 Jerry Ashburn was convicted of robbery and escape. He was released on parole in 1989 and convicted of additional crimes in 1990 and ordered to pay some $36,000 in attorney fees, court costs and to the crime victim compensation fund. The Iowa DOC implemented a plan whereby it would deduct funds deposited to Ashburn's prison account from outside sources and use them to pay his restitution from the 1990 conviction. Ashburn filed a petition in state court seeking a hearing on the restitution plan imposed by the DOC. He contended it was legal error for the DOC to take restitution for the second conviction when he was still serving a sentence for the parole violation of the first sentence. He also claimed he was entitled to a hearing before any funds were taken from his account.

The district court denied his motion to modify the restitution plan and granted summary judgment to the state. The Iowa supreme court affirmed in part and reversed ...

$55,540 in Attorney Fees for RFRA Suit

Schlomo Helbrans, an orthodox Jew, filed suit to prevent being shaven for a photo by prison officials upon his entry into the New York prison system. He contended that being shaven would violate his religious beliefs. He prevailed on his claim when he presented a computer generated likeness of what ...

Parole Change Violates Ex Post Facto Clause

In the July, 1995, issue of PLN we reported the supreme court's ruling in Morales v. California Department of Correction, 115 S.Ct. 1597 (1995) which held that legislatively extending the time in which a prisoner can appear before a parole board does not violate the ex post facto clause. The language in that ruling made it apparent that prisoners will find it extremely difficult to prevail in an ex post facto challenge to parole regulations. A federal district court in Maryland held that the DOC not allowing life sentenced prisoners to go to work release facilities coupled with an unwritten parole board rule that life prisoners would not be paroled unless they were in a work release facility, violated the ex post facto clause by increasing the punishment for the crime the prisoners had been sentenced to. Readers should note that the facts in this case are somewhat unusual.

In 1993 the head of the Maryland DOC suspended lifer participation in work release and family leave programs and returned all such prisoners to medium security prisons. The Maryland Parole Commission requires that lifers must progress to lower security levels before they will be recommended for parole. The DOC ...

Washington DOC Enjoined from Taking Blood

The Washington state court of appeals for Division I affirmed a superior court order enjoining the Washington DOC from taking blood from a prisoner for its DNA databank. Sheryl Kelley was convicted of drug possession. RCW 43.43.754 authorizes the DOC to take blood from persons convicted of a sex or violent offense. Kelley's possession offense was neither a violent nor a sex crime. However, the state claimed to rely on statutes which define any class A felony as a "violent offense" because even though Kelley was sentenced to 54 months of a potential ten year sentence another statute would have authorized the trial judge to double the sentence due to her prior convictions.

Kelley was forced, under threat of disciplinary sanction, to allow her blood to be taken by the DOC. She then filed suit to seek an injunction preventing the DOC from performing a DNA analysis of her blood and storing, drawing or testing it. In affirming the injunction the appeals court noted that the legislature had specifically set forth the offenses for which DNA analysis would be performed. The court rejected the state's arguments that Kelley's offense was "violent" for testing purposes or ...

Grievance Discipline Struck Down

The court of appeals for the ninth circuit affirmed a lower court ruling that found Oregon DOC rules that punished prisoners for using hostile, sexual, abusive or threatening language in their written grievances to be unconstitutional. Jeff Bradley, an Oregon state prisoner, was infracted for violating Or.Admin.R. 291-105-015(2)(f), Disrespect, by prison officials after he filed a grievance complaining about a guard not taking him to the law library for a scheduled appointment. In his grievance Bradley contended that the guard had misused her authority, had a psychological disorder and had acted unprofessionally and childishly. Bradley was found guilty and punished.

Bradley filed suit challenging the application of disciplinary rules banning "disrespect" as they are applied to written prison grievances. The district court granted summary judgment in Bradley's favor holding that prisoners should be free to file grievances without fear of being punished for "an unhappy choice of words." The court enjoined prison officials from punishing Bradley for his grievance or applying the disrespect rules to the language within written grievances. The court of appeals affirmed this ruling in its entirety.

The court held that prisoners' right of access to the courts and their right to ...

Disciplinary Findings Must State Evidence Relied On

A federal district court in Illinois held that a disciplinary committee's report finding a prisoner guilty of misconduct must state the charges the prisoner was found guilty of and the evidence supporting each of the charges. Alvin Oswalt, an Illinois state prisoner, filed suit under 42 U.S.C. § 1983 claiming his due process rights were violated by prison officials after he was found guilty of escape, damage to property and conspiracy attempt to escape. The defendants filed a motion to dismiss which the court granted in part, dismissing Oswalt's claims concerning the investigation, the time he spent in segregation during the investigation, the hearing committee's refusal to call his witnesses and to accept his documentary evidence. Illinois prisoners also have no due process right not to be placed in segregation pending investigation.

The court denied the defendants' motion with regards to Oswalt's claim that he was not given a written statement of the reasons for the disciplinary action. In its summary the committee said it relied on Oswalt's admissions, prison records and the credibility of witnesses in finding him guilty. The court noted that a reviewing court must affirm a disciplinary ruling if there ...

Oklahoma Pre-Parole Status Creates Liberty Interest

The court of appeals for the tenth circuit has held that Oklahoma's pre-parole conditional supervision program creates a due process liberty interest which mandates a hearing before prisoner's can be removed from it. This case is significant because it was decided in the aftermath of Sandin v. Conner, 115 S.Ct. 2293 (1995), [PLN, Aug., 1995], which significantly changed the standards for state created liberty interests. Ernest Harper, an Oklahoma state prisoner, was in the program, which is a more restrictive form of parole that allows prisoners to live and work in the community. Harper was given verbal notice five hours before he was told to turn himself into police. He was never provided with any type of hearing. After exhausting his state remedies, see: Harper v. Young, 852 P.2d 164 (Okla.Crim.App. 1993), Harper filed a writ of habeas corpus in federal court which was denied. The appeals court reversed and remanded the case with instructions to the lower court to issue the writ of habeas unless the state placed Harper back in the program.

The court held that program participation was sufficiently similar to parole or probation to require a hearing before it can ...

Exploitation of Ohio Prison Labor

Ohio Penal Industries (OPI) in recent years has stepped up their campaign to entice local industry into using Ohio's cheap prison labor force to manufacture their products. Their efforts have been met with considerable success. A number of Ohio companies have voiced their interest in the prospect of exploiting Ohio's prison labor force. In fact, two companies have already signed private person contracts with OPI to use prison labor at the Chillicothe Correctional Institution (CCI).

In April of 1993, Konica Business Machines, Inc. (Konica) a Windsor, Connecticut based company, signed a private person contract with OPI to use prison labor to recondition Konica copiers. Prisoners fresh out of a vocational training program for Office Machine Repair at CCI were recruited to work under the OPI-Konica contract. Prisoners were paid between 35¢ and 47¢ an hour for their labor. The reconditioned copiers were eventually sold or leased by Konica to other companies in Ohio and other states.

The contract between OPI and Konica was terminated in May of 1994 because Konica experienced legal problems related to their contract with OPI. Evidently, there was some concerns about the legality of an out-of-State company using prison labor to produce products which ...

Grievance Retaliation Unlawful

A federal district court in Michigan has held that it is unlawful for prison officials to retaliate against prisoners who complain of misconduct by guards and for prison officials to read legal mail sent to prisoners from the courts. Those claims were set for trial and a claim that legal mail was "censored" was dismissed because there were no factual allegations to support it. Jimmie Riley, a Michigan state prisoner filed several complaints against a guard, David Kurtz, who committed various acts of misconduct. Kurtz then fabricated a disciplinary charge against Riley in retaliation for his complaints. Riley filed suit contending that this retaliation violated his first and fourteenth amendment rights. The district court denied Kurtz's motion to dismiss or for summary judgment on the retaliation claim.

The court noted that "Retaliation against the exercise of First Amendment rights is itself a violation of the First Amendment." Zilich v. Longo, 34 F.3d 359, 364 (6th Cir. 1994). The court rejected Kurtz's claim that retaliation by guards must "shock the conscience" before it is actionable. "....Unless a prison official can demonstrate a legitimate penological justification, he abuses his power if he uses his position to infringe upon the ...

Jury Not Waived in "Doubtful Situation"

The fifth circuit court of appeals held that a plaintiff's right to a jury trial is not waived unless the plaintiff was clearly informed that an evidentiary hearing before a magistrate would constitute a trial. Darrell McAfee, a Texas state prisoner, filed suit against various policemen and prison officials. The action was referred to a magistrate and after the magistrate held an evidentiary hearing, she recommended dismissal of the action, holding McAfee had failed to meet his burden of proof. The action was then dismissed. McAfee had previously demanded a jury trial.

The court of appeals vacated and remanded the dismissal, holding that it was not clear that a trial was being held. The right to a jury trial is a fundamental right and courts should "indulge every reasonable presumption against waiver.... A waiver should not be found in a 'doubtful situation.'" The court held that McAfee did indeed face a "doubtful situation" because the magistrate initially referred to the proceeding as an "evidentiary hearing" then later called it a "trial" without explaining the difference between the two. The court noted that the Assistant Attorney General asserted the proceeding was a hearing, not a trial. "Thus, if the defendants ...

Peruvian POWs Rescued

[Editor's Note: Since 1980 the Communist Party of Peru (PCP) has waged a people's war in an effort to overthrow the US supported regime in Peru. That struggle suffered a major setback in 1992 when the party's chairman, Abimael Guzman, and several members of the central committee were captured by the Peruvian secret police. Since then the people's war has continued; subjected to an almost total news blackout amid claims by the government that the PCP has been defeated. The Peruvian government holds several thousand political prisoners in abysmal conditions. [See: PLN, Vol. 3, No. 9.] In the past, the government has murdered hundreds of political prisoners in periodic massacres. The following article was translated by PLN from El Diario Internacional, a magazine published in Belgium by exiled journalist Luis Arce Borja. This is the first time it has appeared in English. For more information about political developments and struggle in Peru contact: The New Flag, 30-08 Broadway, Suite 159, Queens, NY 11106.]

In a violent operation, a column of the People's Liberation Army (PLA) composed of 50 guerrillas, attacked a police convoy and liberated eight prisoners of war. The rescue operation took place on ...

Genital Groping States Claim

A federal district court in New York held that a prisoner's allegations of sexual harassment state a claim for a violation of the eighth amendment. Julio Hunt, a New York state prisoner, filed suit claiming that he had his penis and testicles squeezed and rubbed by a guard during pat frisk searches. Hunt also claimed the guard inserted his thumb into his anus and patted and squeezed his buttocks. Hunt reported these incidents to prison officials who did nothing. Hunt filed suit claiming that the fondlings were done as part of a conspiracy to racially discriminate against him and that the searches violated his eighth amendment rights. The defendants filed a motion to dismiss which the court granted in part and affirmed in part.

The court dismissed Hunt's racial discrimination claims holding there was nothing to show that they were part of a conspiracy or done with racial animus. The court denied the motion to dismiss regarding the eighth amendment claims. The court held that the force used by the defendant guard during pat frisk searches clearly violates contemporary standards of decency. Hunt alleged that the defendant's conduct violated his right to be free from cruel and ...

Michigan ACLU Protests Religious Prison College

The ACLU of Michigan has sent a complaint to the attorney general's office against Spring Arbor College, which holds a $560,000 DOC contract to teach college courses at four Michigan state prisons. The complaint was filed after the school sent out letters to prospective faculty stating they would only hire "active Christians who embrace Jesus Christ in their everyday living and have a Master's Degree in the area they will be teaching."

The ACLU has pointed out that state law requires all state contracts to contain a clause that the contractor does not discriminate on the basis of religion or any other factors. The college denied that it does any proselytizing among prisoners and states that it is simply a Christian school that wants to employ Christian teachers. The ACLU maintains that the school is an unqualified bidder based on its religious discrimination. As a practical matter, taxpayer money should not be used to finance religious institutions-- that is what the separation of church and state is all about. While free citizens may choose to go to religious schools, prisoners have no choice in what schooling they attend; they must attend what the DOC provides them or ...

Seventh Circuit Decides "Mail Box" Rule

In a case of first impression in that circuit, the court of appeals for the seventh circuit ruled that a prisoner's pleadings are considered "filed" with the court when they are given to prison officials for mailing. The case involves an Illinois state prisoner who gave his notice of appeal to a prison guard for mailing two days before the notice was due; the notice was actually mailed three days later, one day after it was due. Court deadlines for filing documents are crucial in many cases because strict time limits govern courts' jurisdiction to hear matters. In this case, if the appeal had not been filed in a timely manner the court would have lacked jurisdiction to hear the matter on its merits.

The court gives an extensive discussion of how Houston v. Lack, 487 US 266, 108 S.Ct. 2379 (1988), which holds that pro se prisoner litigants have "filed" their appeal notices when they deliver it to prison officials for mailing, has been applied by the various circuit courts. Some circuits, such as the tenth in United States v. Leonard, 937 F.2d 494 (10th Cir. 1991) have held that prisoners must send their pleadings as ...

Damn Lies and Statistics

Most PLN readers are well aware of the conservative PR campaign designed to convince legislators and the voting public that the courts are threatened with drowning in a deluge of prisoner-initiated litigation. The National Association of Attorneys General (NAAG) has developed model legislation designed to severely limit prisoner-initiated litigation. This legislation has been passed or is being considered by most states. [See: 'TX Anti-Litigation Law" in the Jan. '96 issue of PLN ] The U.S. House of Representatives passed the Stop Turning Out Prisoners Act (STOP) last fall. When the bill reached the Senate, Senators Orrin Hatch and Bob Dole substituted their Prisoner Litigation Reform Act (PLRA) for the STOP language, and that version passed the Senate in September. The final version of the bill was vetoed by President Clinton and as of this writing is back in congress for further revisions.

The NAAG's campaign to target prisoner litigants is being waged not only in the state houses, but through the media via a well coordinated PR campaign. Media outlets across the country have been fed "Top Ten" frivolous prisoner lawsuit press releases, and since prisoners are a favorite scapegoat of the media, those press releases received prominent coverage ...

Georgia Prisons Enter Dark Ages

According to a PLN reader in Georgia, "Our ex-[Prisons] Commissioner, Dr. Allen Ault, got into a battle with Zig-Zag Zell Miller [Georgia's Governor]. Miller ordered him to cut-off TV's and phones during the day, cut the phone time to 10-minutes per call, and take out the weights. Ault quit, then parole board chairman Wayne Garner took over as Commissioner. The extent of Garner's prior management experience was as a small-town undertaker."

Within two weeks after assuming office in late December, Garner, a long-time crony of Miller, made a speech to the state legislature. "We have 60 to 65 percent of our inmate population that truly want to do better ... but there's another 30 to 35 percent that ain't fit to kill and I'm going to be there to accommodate them," he told lawmakers.

In a memo to prison wardens, Garner ordered them to immediately put 100% of their prisoners to work. Garner said no job is too insignificant even if it's "digging large holes or ditches, then filling them in, only to dig it up again." Garner's work program pleased state lawmakers who are "frustrated by the constant barrage of lawsuits ...

Michigan Consent Decree Not Changed

It seems that not a year goes by where PLN does not report at least two or three rulings concerning the ongoing effort by the Michigan DOC to vacate the various consent decrees it entered into with prisoners to settle various conditions lawsuits in the 1980's. Rather than fulfill the obligations it chose to enter into an agreement to undertake, the MIDOC has preferred to avoid compliance and challenge the decrees at least once a year. This is the latest installment of Hadix v. Johnson, a class action suit challenging conditions at the state prison in Jackson. This case has been going up and down the courts for some fifteen years now with no end in sight. The defendants sought dissolution of the consent decree because "public opinion with regard to the 'rights' of prisoners has changed."

The issue in this case concerns provisions in the consent decree mandating prisoners have at least seven hours of meaningful out of cell activity time on weekdays and five on weekends. Rufo v. Inmates of Suffolk County Jail, 502 US 367, 112 S.Ct. 748 (1992) set forth the standard that must be met in order for a party to change or ...

Arizona's New Tin Horn Dictator

The tyrannical rule of Arizona prison director, Sam Lewis, came to an end with his resignation in December, 1995. PLN has previously reported the oppressive tactics employed by Lewis which rolled back many of the gains made by prisoners during the 1960's and 70's. Prisoners struggled through riots, strikes, and deaths - sacrificing blood, sweat and tears - to bring about a degree of dignity and decency to prison management policies.

Lewis, however, failed to heed the lessons of the past. He instilled a state-wide campaign of repressive policies designed to return Arizona's prisons to the barbaric times of the past. His management style earned him the title given him in the press by attorney John Franks who referred to Lewis as a tin horn dictator.

The August 1994 issue of PLN (Oppression on the Rise in Arizona) reported how Lewis took most personal property from prisoners, such as cassette players, CD's, clothing, gloves, cold weather apparel. He also reduced the variety of food items available through commissary orders to mere candy items. PLN accurately predicted what the outcome of such policies would be.

Under Lewis, the entire Arizona prison system experienced a marked increase of tension and ...

RFRA Applies to Retaliation Claims

A federal district court in Colorado has held that the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb(b)(1) applies to prisoners' retaliation claims. John Hall, a Colorado state prisoner, filed suit under the RFRA and § 1983 claiming prison officials retaliated against him by placing him segregation, moving him to different prisons and putting false information in his prison file in retaliation for Hall's exercise of his religion and his race. Hall is a minister in the Nation of Islam. Beginning in 1992 Hall was subjected to a series of transfers to other prisons in Colorado. Prison officials claimed the transfers were due in part to confidential information linking Hall to work stoppages and other disciplinary infractions.

The district court denied the defendants' motion for summary judgment, holding that disputed issues of fact precluded summary judgment. The court analyzed the RFRA claim under Werner v. McCotter, 49 F.3d 1476 (10th Cir. 1995) and held that Hall had stated a claim that he was denied an opportunity to practice his faith by being subjected to retaliatory transfers and being prohibited from wearing religious headgear. The court rejected the defendants' contention that the transfers were not punitive ...

Pelican Bay Psychiatrists Resign in Protest

In the August '95 issue of PLN we reported Madrid v. Gomez, the suit challenging conditions at the Pelican Bay State Prison in Crescent City, CA. Federal district court judge, Thelton Henderson, ordered the California Department of Corrections (CDC) to implement significant improvements in the mental health treatment of Pelican Bay prisoners and to discontinue the practice of housing mentally ill prisoners in the Special Housing Unit (SHU).

Dr. Robert Benson, the former chief psychiatrist at Pelican Bay resigned on November 22, 1995. After Benson criticized CDC superiors for allowing the continued poor conditions and hostile environment at Pelican Bay, he was removed as chief, placed on "special assignment" and told not to talk to the rest of the psychiatric staff. "I was put in a 12-by-12-foot office doing nothing," Benson said. "I was not allowed to consult with colleagues on the prison staff."

Benson and another former Pelican Bay psychiatrist, Dr. John Morris, voiced their criticism of the CDC mental health system's failings in a letter by their attorney, Gregory Hartwell, to district court judge Henderson. Morris, who took over as acting chief psychiatrist after Benson was "exiled" to his 12-by-12 do-nothing office, also quit in November after ...

Jailhouse Lawyers Retain Right to Assist Prisoners

The court of appeals for the ninth circuit has held that prison officials are not entitled to qualified immunity when they punish a jailhouse lawyer for assisting another prisoner. Terry Newell, an Alaska state prisoner, was employed as a prison law library clerk and had a computer in his cell. In 1989 prison guards confiscated some 59 pages of computer generated rough draft legal pleadings Newell had written for a borderline retarded prisoner. Newell was infracted for violating 22 AAC 05.400(d)(7), "possessing anything not authorized for retention or receipt by the prisoner, and not issued through regular facility channels." Newell was found guilty by a disciplinary committee and given a verbal reprimand. After this incident the Alaska DOC issued a memo more explicitly banning prisoners' possession of other prisoners' legal materials.

After exhausting his administrative and state remedies Newell filed suit in federal court. The district court granted summary judgment in favor of Newell. The sole issue on an interlocutory appeal by the defendant prison officials was whether the defendants were entitled to qualified immunity from money damages. The appeals court held that prisoners had a clearly established right to assist other prisoners in legal matters without ...

Texas Guard Killed by Riot Shield

Harry Landis, a 58-year-old Texas prison guard collapsed after being shocked by an electrified riot shield during a training session. Guards were being trained in the use of the "electronic capture shield" designed to subdue prisoners. The device delivers a shock of 40,000 to 50,000 volts of electricity through copper strips running the width of the shield.

According to prison spokesman David Nunnelee, use of the shields, which were first put to use against prisoners in September, 1995, was suspended until an investigation into the guard's death is complete. Nunnelee said that it is "highly unlikely" the electric jolts caused the guard's death.

Witnesses to Landis's death say that prior to the start of the training session he asked a question about how the shield might affect someone with heart trouble. Landis was told that "literature from the manufacturer indicates that the shield should have no effect on anyone with heart trouble or a pacemaker."

John McDermit, president of Nova Products, Inc., the Cookeville, Tennessee-based company that makes the shield, said prison officials had told him that Landis had a heart condition. "We're very sorry this happened," McDermit said. "But there certainly was no ...

No Jurisdiction for Some Qualified Immunity Appeals

The court of appeals for the fourth circuit held that it lacked jurisdiction to hear an appeal by prison officials accused of being deliberately indifferent to the safety of a prisoner where they stood by while he was attacked and stabbed by a drunken prisoner. The defendants had sought summary judgment and qualified immunity in the district court and both motions were denied. The lower court held that there were material issues of disputed fact concerning actions by prison officials and that under Pressly v. Hutto, 816 F.2d 977 (4th Cir. 1987) prisoners in the fourth circuit have a right to be protected from harm by other prisoners.

The appeals court dismissed the appeals and published the ruling because until Johnson v. Jones, 115 S.Ct. 2151 (1995), [PLN, September, 1995] the fourth was one of the circuits where civil rights defendants could appeal both the facts in a case and the qualified immunity question before trial. Readers should note that appellate jurisdiction is a threshold issue that must be addressed before a federal appeals court will hear an appeal on the merits. Rulings involving government officials' qualified immunity involve two determinations: whether the constitutional right(s) at issue ...

Permanent Injunction Issued in Madrid

A PLN reader in Pelican Bay sent us a copy of a 26-page "Remedial Order RE: Exclusion From the Security Housing Unit" issued by U.S. district court judge Thelton Henderson on December 15, 1995. The reader who sent us the copy characterized it as "basically just more penological rhetoric, since ain't nothing has changed in the way of establishing an adequate medical department."

For background on Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal 1995), the Pelican Bay class action suit, refer to the August '95 issue of PLN. In January 1995, the court rendered a lengthy decision which was harshly critical of the California Department of Corrections (CDC), which Gomez heads, and of the brutal treatment of Pelican Bay Security Housing Unit (SHU) prisoners in particular. A special master was assigned to monitor changes ordered by the court's 1995 ruling.

The court found in 1995 that conditions of SHU imprisonment at Pelican Bay amounted to cruel and unusual punishment for a sub-class of prisoners: those who are mentally ill, as well as prisoners who suffer from certain other mental disorders, chronic depression or brain damage and retardation. The court had ruled: "For these inmates ...

$460,800 Verdict in Ohio Beating Affirmed

A district court in Ohio denied prison officials' motion for a new trial and affirmed a jury verdict of $460,800 to two Ohio state prisoners who had been beaten by prisoner guards. In the January, 1995, issue of PLN we reported the jury verdict as a news item. Danny ...

Discrimination Dismissal Reversed

The court of appeals for the eleventh circuit held that prisoners have a right to be free from racial discrimination and that direct evidence of such discrimination will usually make summary judgment inappropriate. Vincent Harris, a Florida state prisoner, filed suit against several prison guards and the warden contending they subjected him to harassing strip searches, retaliatory discipline, an inadequate diet and an insect infested cell because of his race and prior litigation. The district court granted summary judgment to the defendants and dismissed the case. The appeals court reversed in part, affirmed in part and remanded.

The court affirmed dismissal of all the claims raised except for that concerning the racial discrimination by one of the guards. The court noted prisoners have a right to be free from racial discrimination. See: Lee v. Washington , 390 US 333, 88 S.Ct. 994 (1968). In granting the defendants summary judgment the lower court ignored affidavits from two prisoners who swore that they had heard the guard make racist statements to Harris and that he had filed disciplinary reports against Harris in retaliation for prior litigation. The court held these affidavits create sufficient evidence to require a trial on the merits as ...

Administrative Reversal of Disciplinary Sanction Doesn't Bar Suit

Afederal district court in New York held that the administrative reversal of a disciplinary sanction does not bar a § 1983 suit for money damages if the prisoner had already been punished with all or part of the sanction prior to the administrative reversal. Thomas Porter, a New York state prisoner, was infracted for assaulting two prisoners and placed in segregation pending the disciplinary hearing. At the hearing Porter was found "guilty" and sentenced to 12 months of segregation, loss of telephone, commissary and package privileges. Porter immediately began serving the sanctions and several months later the infraction was administratively reversed because Porter had appealed the fact that he had not been provided with assistance in order to prepare his defense at the hearing or to present evidence and witnesses in his defense. He then filed suit in federal court.

The prison official defendants sought summary judgment arguing that because the infraction was reversed on appeal Porter had received due process and could not seek money damages. The court rejected this argument. The second circuit has held that administrative reversal does not cure any due process violations that occur in the initial hearing where the prisoner is punished as a result ...

Fourth Circuit Rules on IFP Statute, Again

In the July, 1995, issue of PLN we reported Nasim v. Warden, Maryland House of Correction, 42 F.3d 1472 (4th Cir. 1995) in which the fourth circuit court of appeals reversed a district court's dismissal of a prisoners' § 1983 suit as being frivolous under 28 U.S.C. § 1915(d), the in forma pauperis (IFP) statute. The court agreed to rehear the appeal en banc and it has reversed the prior panel ruling, affirming dismissal of the suit. The majority's en banc ruling reads more like a tirade against prisoner litigants than a discussion of legal principles.

The underlying suit involves a Maryland state prisoner's claim that he suffered adverse health reactions after being exposed to asbestos. He filed suit four years after the exposure which was one year after the relevant statute of limitations had run. The district court dismissed the suit holding that the time bar made the complaint frivolous on its face. The appeals court had reversed holding that Nasim had not claimed he was aware that asbestos exposure was harmful until later, nor did he initially connect his health problems to asbestos exposure and this tolled the time limit. The en banc ...

Sandin Inapplicable to Detainee Disciplinary Claims

The court of appeals for the ninth circuit held that a jail policy prohibiting detainees from calling live witnesses to testify at disciplinary hearings, under any circumstances, was unconstitutional. The court held that prison and jail rules confer no legal rights to prisoners and that counties are not liable for ...

$150,000 Jury Award in Beating Case Affirmed

The court of appeals for the second circuit held that a prisoner beaten and held in a strip cell was properly awarded $150,000 in compensatory and punitive damages by a jury. Donovan Blissett, a New York state prisoner, filed suit after Attica prison guards severely beat him after claiming ...

News in Brief

OH: On January 26, 1996, Hugh Smith, a prison guard at the Correctional Medical Center, was arrested and charged with having sex with prisoners. Smith was charged with the sexual battery of three female prisoners, the contacts were believed to have been consensual and occurred between December, 1994 and July, 1995. Smith resigned from his DOC job.

OH: Four state prisoners were indicted in federal court for filing false income tax returns and collecting $11,700 while in prison together. Lee King, Richard Johnson, Charles Clary and William Harvey filed six false tax returns, according to the indictment. The refund checks were cashed by friends and relatives.

Brazil: On January 8, 1996, prisoners at a Sao Paulo prison took three guards hostage during an uprising to demand better prison conditions. Images shown on television included that of a prisoner shouting angrily while holding a guard by the neck and brandishing a large homemade knife.

Kuwait: On January 6, 1996, hundreds of prisoners in the Kuwait Central Prison outside Kuwait City rioted, burning down the jail's hospital, school, library and breaking down doors and doing serious damage to the jail's security systems. Two prisoners were reported injured during the ...

Tuberculosis TRO Issued

A federal district court in New York granted a prisoner's motion for a Temporary Restraining Order (TRO) holding that a prison's mandatory tuberculosis (TB) test violated his religious rights. Paul Jolly, a New York state prisoner, is a Muslim. In 1991 the New York DOCS implemented a TB testing program whereby all prisoners are given an annual TB test by means of the Purified Protein Derivative (PPD) test, where protein is injected under the skin. This test has a high error rate of false readings. Jolly refused to submit to the PPD test contending it violated his religious beliefs. As a result he has been kept in medical segregation since 1991 for his refusal. Jolly has never shown any symptoms of TB. He filed suit contending that his segregation violated his right to religious expression under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb(b). Jolly sought a TRO for his release to the prison population pending a hearing on the merits of the case. The court granted the motion.

The court held that Jolly had properly demonstrated a high likelihood of success as well as a harm that cannot adequately be compensated by money ...

 

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